American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
Similar debates ensued about the federal judiciary. Most delegates agreed that some sort of federal judiciary was necessary. But should it consist of one court of last resort or a broader system of federal courts? How should judges be selected—by Congress or the president? If Congress had the power to select, should both houses of Congress participate or only one house? If only one of them participated, which one should it be?
Answers to these questions, as to others, came in the form of compromises and creative solutions. The Constitution created one Supreme Court but left it to Congress to decide whether to create other, lower federal courts. Judges for the court were to be nominated by the president, but the nomination was to be subject to confirmation by the Senate. (See Chapter 14.) The framers also embraced federalism (see Chapter 3)—a creative solution that gave some powers to the national government and others to the states. Federalism allowed proponents of a strong national government as well as proponents of states’ rights to feel that they had won on some issues.
The Constitution
After almost three months of debate, the Convention completed a final draft of the Constitution. It consisted of a preamble followed by seven articles. When the Constitution came to a vote, 39 of the 55 delegates voted to support it. However, the supporters constituted a majority of each of the 12 state delegations in attendance and each state had one vote, so the final vote in favor of the Constitution was 12–0.44 Thirty-nine delegates signed the document on September 17, 1787—the last day of the convention. Of the delegates in attendance, only three refused to sign the Constitution.
The Constitution was a work of compromise, but it was controversial even after being completed and only 39 of 55 total delegates signed the final document.
Core Principles
The establishment of the Constitution represented a significant break from the past. This break is evident from the first three words of the Preamble to the Constitution, “We the people,” which stood in marked contrast with the Articles of Confederation’s “We the undersigned delegates of the states,” signifying that America was now one people rather than 13 individual states. No one could predict how successful and influential the Constitution would be, but more immediately apparent was how pathbreaking it was.
republicanism A form of government in which power rests with the people but where the people rule only indirectly through elected representatives bound by the rule of law.
The governmental design created by the Constitution can be understood in terms of four core principles (see Table 2.2). Republicanism, the first of these principles, stands in contrast with both direct democracy and monarchy. A republican form of government is one in which power rests with the people (as opposed to a monarch or, as under the Articles of Confederation, the states), but the people rule only indirectly, through elected representatives bound by the rule of law. Rule by representatives was expected to temper the passions of public opinion associated with a direct democracy, while elections would assure that those representatives remained accountable to the people for their actions. Republicanism had never been tried in a country as vast as the United States, and some feared that elected representatives would be tempted to act tyrannically rather than according to the rule of law.
Table 2.2
Second, the Constitution instituted a system of federalism. In contrast with both a confederation, where the primary power is left to the states, and a unitary system, where all areas of power belong to the central government, a federation is a system in which power is divided between the central government and the state (or other regional) governments. The Constitution listed the powers of the national government, and it also listed the powers denied to the states, implying that all other powers were retained by the states. The Tenth Amendment (part of the American Bill of Rights, ratified in 1791) later clarified this, stating: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Dividing powers between the national government and the states was another check designed to prevent tyranny.
As we will see in Chapter 3, debate continued even after the ratification of the Tenth Amendment about precisely what powers were reserved to the states and when, if ever, Congress could interfere with those powers. It was clear, however, that whenever it was exercising its constitutionally enumerated powers, the national government was supreme: If conflicts arose between national and state law in such cases, national law would always prevail. As the supremacy clause of Article VI, Clause 2 put it, the Constitution, as well as acts of Congress and federal treaties passed pursuant to the Constitution, were “the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Third, the Constitution instituted a separation of powers across branches of the national government. Similar to federalism, this was designed to prevent the concentration of power in any one part of government. Thus, the framers divided the national government into three coequal branches and gave each a separate function. The legislative branch was given the power to make the laws, the executive branch was given the power to enforce (or execute) the laws, and the judicial branch was given the power to interpret the laws. This stands in contrast with parliamentary systems such as the United Kingdom, where the prime minister and the cabinet, who together perform the executive function, are drawn from the legislature.
supremacy clause Article VI, Clause 2 of the Constitution specifying that federal laws and treaties passed pursuant to the Constitution trump contradictory state laws dealing with the same topic.
separation of powers The division of governmental powers among three separate and coequal branches—legislative, executive, and judicial.
checks and balances A method to protect against unrestrained governmental power by dividing and sharing powers among the legislative, executive, and judicial branches.
Finally, to further ensure that power would not become concentrated, the Constitution set up a system of checks and balances in which each of the three branches among which power was divided would have some degree of control over the other two. In other words, power is both divided and shared, as shown in Figure 2.4. We have already discussed how war powers, appointment power, and treaty power are each shared between the president and Congress. There are also other checks. For example, the president is given the power to veto legislation. Moreover, that veto can be overridden only by a two-thirds majority of both houses of Congress (as opposed to simply getting the most votes, which is required for passing legislation in the first place). Thus, the president has a check on Congress, but this check is itself limited. Similarly, courts have a check through their power to interpret laws passed by Congress, and—by means of judicial review—to strike down laws and executive actions that violate the Constitution. Though not specifically enumerated in the Constitution, judicial review—as discussed below—has become an accepted part of our constitutional system. And, Congress has the power to impeach—remove from office—the president, vice president, and other civil officers, including federal judges and Supreme Court justices.
Figure 2.4 System of Checks and Balances in the U.S. Federal Government